Madras High Court
Ranjith @ Ranjithkumar vs State Represented By on 11 October, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.572 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.572 of 2021
Ranjith @ Ranjithkumar .. Appellant
.Vs.
State represented by:
Inspector of Police,
Mettupalayam Police Station,
Puducherry,
Crime No.86 of 2016. .. Respondent
Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure to set aside the judgment and conviction dated 10.08.2021
passed in Spl.S.C.No.53 of 2019 on the file of the learned Special Judge
(Under the POCSO Act 2012) Puducherry.
For Appellant : Mr.R.John Sathyan
for Mr.Swami Subramanian
For Respondent : Mr.V.Balamurugane
Public Prosecutor(Pondicherry)
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 10.08.2021 passed in Spl.S.C.No.53 of 2019 by the learned Special Judge (Under the POCSO Act 2012) Puducherry.
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2. The case of the prosecution is that the accused, who is a teacher/owner of the tuition centre (Educational Institution) where the victim child aged about 15 years was studying, on several occasions pressed her breast, hugged and kissed her and also had sexual intercourse repeatedly by inserting penis into her private parts and also threatened the victim by stating that if she deny the same, her younger sister who is also studying in the same tuition centre would also be put into trouble and thereby, committed the offence under Section 9(f) and (l) of 'Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience] which is punishable under Section 10 of POCSO Act and the offence of aggravated penetrative sexual assault more than once on the victim child as defined under Sections 5(f) and (l) of POCSO Act punishable under Section 6 of POCSO Act and Section 506(i) IPC.
3.On the complaint given by the victim child/P.W.1 the respondent/Police registered a case in Crime No.86 of 2016 against the appellant for the offence under Section 6 of POCSO Act. The respondent/Police on completion of the investigation, filed a final report before the learned Special Judge (Under the POCSO Act, 2012) https://www.mhc.tn.gov.in/judis Page No.2/17 Crl.A.No.572 of 2021 Puducherry. When questioned, the accused denied the allegation. However, based on the materials, the trial Court found that the accused was guilty of the above offence and framed charges for the offences under Section 5(f) and (l) punishable under Section 6 of POCSO Act and Sections 376 and 506(i) IPC.
4.In order to prove the case of the prosecution before the trial Court, on the side of the prosecution as many as 16 witnesses were examined as P.W.1 to P.W.16, marked 16 documents as Exs.P1 to P16 and no material objects were marked. On the side of the defence, no oral or documentary evidence were produced.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant/accused and was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false and pleaded not guilty.
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the appellant is guilty https://www.mhc.tn.gov.in/judis Page No.3/17 Crl.A.No.572 of 2021
(i) for the offence under Section 6 of POCSO Act, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.15,000/-, in default, to undergo simple imprisonment for a period of one year.
(ii) for the offence under Section 376 IPC, the accused was convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a period of one year; and
(iii) for the offence under Section 506(i) IPC the accused was convicted and sentenced him to undergo rigorous imprisonment for a period of one year.
7. Challenging the said conviction and sentences, the appellant is before this Court.
8.1 The learned counsel for the appellant/accused submitted that the appellant and the victim child loved each other but parents of the victim child did not agree for their marriage as both are from different community and therefore, a false case was foisted against the appellant. The entire case of the prosecution is a concocted one. He further https://www.mhc.tn.gov.in/judis Page No.4/17 Crl.A.No.572 of 2021 submitted that as per the prosecution, the incidents are said to have taken place in the tuition centre, however, tuition centre is in the open place and is visible to others and also the victim child's house is situated opposite to the house of the accused. The parents of the appellant and tenants were living in the first floor and the tuition center is running in the second floor and there used to be a dog tied in the stair case and no one could have reached the second floor without the knowledge of the persons in the ground floor that too in the early morning it is not possible for the appellant to commit sexual assault on the victim child. The appellant and the victim child loved each other and when it came to the knowledge of the victim child's parents, they concocted a story and made a false complaint against the appellant. He further submitted that the prosecution has failed to establish that the appellant had physical relationship with the victim child.
8.2 The learned counsel for the appellant further submitted that the Child Welfare Committee received a complaint from the victim child on 26.10.2016, but the report was sent to the respondent/Police only on 31.10.2016. Even if it is a fit case under POCSO Act, immediately the https://www.mhc.tn.gov.in/judis Page No.5/17 Crl.A.No.572 of 2021 Child Welfare Committee will report the same to the police to take action against the appellant, but the Child Welfare Committee has not proceeded with the matter in a speedy manner. There was an inordinate delay in giving the complaint, recording the statement of the victim and sending the documents to the Court, which was not properly explained by the prosecution. Such unexplained inordinate delay is fatal to the case of the prosecution. After deliberation, the victim child's family improvised the version and preferred a false case against the appellant. Under the compulsion of the parents of the victim child, the victim child made a false allegation against the appellant. He further submitted that except the evidence of the victim child, there is no independent eye witness to the said occurrence and there is no corroborative evidence to support the evidence of P.W.1. The medical evidence has also not supported the case of the prosecution. He further submitted that the prosecution has not established by examining other students, who studied in the same tuition centre that any different behaviour prevails between the appellant and the victim.
8.3 The learned counsel for the appellant further submitted that the victim child/P.W.1 in her evidence has clearly spoken that she has https://www.mhc.tn.gov.in/judis Page No.6/17 Crl.A.No.572 of 2021 received a letter from the appellant through P.W.4/co-student of the victim child and the same was put into her bag, while her mother/P.W.3 took the tablets from her bag, she found the letter written by the accused to her daughter and asked about the letter, for which P.W.1 has stated that she did not read the letter and thereafter, on enquiry she stated about the alleged occurrence and preferred the complaint, which is highly improvised version of the victim child's family. However, the prosecution has failed to investigate as to whether the letter in question is written by the appellant or not. Only under the compulsion of the parents of the victim child, a false case has been foisted against the appellant.
8.4 The learned counsel for the appellant further submitted that the prosecution has not established that the appellant has committed penetrative sexual assault on the victim child and hence, Section 5(f)(l) punishable under Section 6 of POCSO Act would not attract. Except the evidence of P.W.1, P.W.2 and P.W.3, no one has stated that the appellant by threatening had sexually assaulted the victim and hence, Section 506(i) IPC would not be attracted. Further, there was no forcible sexual intercourse and therefore, Section 376 would not attract. Therefore, the https://www.mhc.tn.gov.in/judis Page No.7/17 Crl.A.No.572 of 2021 judgment of conviction and sentence passed by the trial Court against the appellant is liable to be set aside.
9. The learned Public Prosecutor (Pondicherry) appearing for the respondent submitted that the accused as a owner/teacher of the tuition centre, in which the victim child studied had committed the offence of penetrative sexual assault against the victim child knowing well that she is below 18 years. The victim child during her deposition before the trial Court, at the time of recording of statement by the learned Magistrate and before the Doctor, has clearly deposed the said incident and also the sexual intercourse made by the accused person. He further submitted that the said occurrence had taken place at 4.30 a.m i.e., in the early morning hours and hence, no one can witness the said occurrence. Therefore, in cases of this nature, the evidence of the victim child has to be taken into consideration and no corroboration is necessary and from the evidence of the victim child the prosecution has proved its case beyond reasonable doubts. He would further submit that Sections 29 and 30 of POCSO Act are very clear that once the prosecution has established its case, it is for the accused to rebut the presumption. However, in the present case, the appellant has not rebutted the presumption under Section 29 of POCSO https://www.mhc.tn.gov.in/judis Page No.8/17 Crl.A.No.572 of 2021 Act. The trial Court has rightly found that the appellant is guilty of the charged offences and convicted and sentenced as above and there is no perversity in the order of the trial Court. Hence, the appeal is liable to be dismissed.
10. Heard the learned counsel on either side and perused the materials available on record.
11. In order to substantiate the charges levelled against the appellant insofar as the offence under Section 5(f) and (l) punishable under Section 6 of POCSO Act is concerned, the victim child was examined as P.W.1 and she has clearly spoken that the appellant is residing opposite to her house and he has been taking tuitions upto 12th standard. The victim child while studying 10th standard, went for tuition in the appellant's tuition centre, during that time the appellant expressed his love and after some time, she has also given consent. After one month, the appellant called the victim to come for tuition at 4.30 a.m and at that time the accused touched her private parts and kissed her and also committed sexual intercourse with her on several times. As the appellant used to call the victim child to come for tuition in the early morning https://www.mhc.tn.gov.in/judis Page No.9/17 Crl.A.No.572 of 2021 hours and no one was available in that place, there was no independent eye witness to the said occurrence, except the victim child. From the evidence of the victim child this Court finds that in the absence of other students, the appellant has committed sexual assault on her. While recording statement under Section 164 Cr.P.C the victim child has clearly spoken about the incident and also the sexual intercourse made by the accused. The victim child has also stated that at one point of time, her parents came to know about the affair between them and that they have stopped her from tuition. At that time, the appellant sent a letter through P.W.4, but the victim child did not read the letter and kept it in her bag. While her mother searching for the tablets in the victim's bag she found the letter given by the accused, thereafter, on enquiry, the victim child revealed the aforesaid act committed by the accused. Subsequently, they filed a complaint against the appellant. Thereafter, the victim child was produced before the learned Magistrate for recording of statement under Section 164 Cr.P.C., in which, she has clearly spoken the said incident. Therefore, the evidence of P.W.1 is supported by the earlier statement recorded under Section 164 Cr.P.C.
12.P.W.7/Doctor who examined the victim child has stated that she https://www.mhc.tn.gov.in/judis Page No.10/17 Crl.A.No.572 of 2021 is not in a position to state exactly what has happened and she has given a report to the effect that there is no symptoms of forceful sexual intercourse and it might have been done with the consent of the victim. Even if it might have done with consent, at the time of occurrence the age of the victim child is only 14 years and she is a child under the definition of Section 2(1)(d) of POCSO Act. In order to prove the age of the victim child Ex.P7/birth certificate of the victim child was marked, which clearly shows that the date of birth of the victim is 25.02.2002. Hence, the prosecution has proved that at the time of occurrence, the victim is a child under the definition of POCSO Act, there is no question of consent.
13. From the evidence of P.W.1/victim child, P.W.2/father of the victim child, P.W.3/mother of the victim child, P.W.7/Doctor, Ex.P.2/164 Cr.P.C statement of the victim child and Ex.P5/medical report, the prosecution has proved that the victim child was subjected to penetrative sexual assault by the appellant. At the time of occurrence, the victim is a child comes under the definition of POCSO Act and therefore, the act committed by the appellant attract offence under Section 5 which is punishable under Section 6 of POCSO Act.
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14. At this juncture, the learned counsel for the appellant vehemently contended that there is no materials to show that the appellant has committed penetrative sexual assault on the victim. However, on a combined reading of evidence of P.W.1, P.W.7 and Ex.P5 this Court finds that there was no forceful sexual intercourse by the appellant, but it was done with consent of the victim. Even assuming that the victim child had relationship with appellant with consent, the age of the victim child is only 14 years and she is a child under the definition of Section 2(1)(d) of POCSO Act. Therefore, the consent is immaterial and having relationship with the appellant is also immaterial. Hence, the act committed by the appellant falls under Section 5(l)(f) punishable under Section 6 of POCSO Act and also for the offence under Section 376 IPC.
15. The victim child in her evidence had clearly spoken that the appellant threatened her by stating that if she resists the appellant, he will take away the life of her younger sister, who is studying in the same tuition centre and will also give trouble to her parents, which would attract the offence under Section 506(i) IPC.
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16. The defence taken by the learned counsel for the appellant is that expect the victim child there is no independent eye witness to the said occurrence and also there is no corroborative evidence to support the evidence of P.W.1. In this type of cases, no corroboration is necessary, because a prudent man would not commit these type of offence in the presence of others. In cases of this nature presence of independent eye witnesses are mostly improbable. If the evidence of victim is cogent, credible and trustworthy, conviction is permissible.
17. Though the learned counsel for the appellant submitted that as per the prosecution the appellant has written letters to the victim child and also he has given one cellphone to the victim, however, the same were not established by the prosecution. Only, under compulsion of the parents of the victim child, she has preferred a false complaint against the appellant. However, from the evidence of victim child and Doctor this Court does not find any reason to disbelieve the evidence of the victim child. Further, the appellant is not a stranger to the victim child's family. Admittedly, the appellant is residing just opposite to the house of the victim child and he is running a tuition centre in which the victim also https://www.mhc.tn.gov.in/judis Page No.13/17 Crl.A.No.572 of 2021 studied and hence, both the families are known to each other. As the appellant is the tuition master of the victim child, there is a possibility to believe that they had some relationship. The appellant has not put even any suggestion before any of the witnesses that the handwriting in the letter Ex.P3 is not that of the appellant.
18. When the prosecution succeeds in prima facie establishing the charge by adhering the standard of proof of preponderance of probability. It is only then, the accused would have to displace the presumption of guilt.
19. The learned counsel further submitted that the parents of the appellant and tenants were living in the first floor and the tuition center is running in the second floor and a dog also tied in the stair case and the victim could not have reached the second floor without the knowledge of the persons in the ground floor that too in the early morning it is not possible for him to have a sexual assault with the victim child. Admittedly, the occurrence had taken place at 4.30 a.m. i.e. early morning hours and there is no chance of witness to the said occurrence. In the present case, the victim child/P.W.1 clearly spoken about the https://www.mhc.tn.gov.in/judis Page No.14/17 Crl.A.No.572 of 2021 allegations made against the accused and in cases of this nature under the POCSO Act, the evidence of the victim child is sufficient to convict the accused since the same is reliable and trustworthy and the Court cannot expect independent witnesses.
20. Taking consideration the facts and circumstances and the evidence P.W.1, P.W.7, Ex.P2, Ex.P5 and Ex.P7 this Court does not find any reason to disbelieve and discard the evidence of the victim child and the prosecution has proved all the charges levelled against the appellant and thereby, he has committed the offence under Section 5(f) and (l) which is punishable under Section 6 of POCSO Act and Sections 376 and 506(i) IPC. The trial Court has rightly appreciated the entire materials and convicted and sentenced the appellant as above.
21. Under these circumstances, this Court, being an Appellant Court as a fact finding Court re-appreciated the entire evidence independently and arrived at just conclusion that the evidence of the victim child inspires the confidence of this Court and the appellant has committed aggravated penetrative sexual intercourse on the victim child and the trial Court has rightly convicted, however, only imposed minimum sentence https://www.mhc.tn.gov.in/judis Page No.15/17 Crl.A.No.572 of 2021 and this Court does not find any mitigating circumstances to reduce the sentence imposed by the trial Court.
22. In the light of the above discussion, this Court does not find any merit in this appeal and the appeal is liable to be dismissed. Accordingly, this Criminal Appeal is dismissed and the judgment of conviction and sentence passed in Spl.S.C.No.53 of 2019 by the learned Special Judge(Under the POCSO Act 2012) Puducherry is hereby, confirmed.
11.10.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms To
1.The Special Judge (Under the POCSO Act 2012) Puducherry.
2.The Inspector of Police, Mettupalayam Police Station, Puducherry,
3.The Public Prosecutor, Puducherry.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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P.VELMURUGAN, J.
ms
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